Aarushi case - Petition for compensation to Nepalese servants

To,
The Hon’ble Chairman,
National Human Rights Commission.
New Delhi

Subject- Arushi murder case- suitable compensation for the three innocent accused and appropriate action against officers found responsible for this
 

Sir,
 

                The petitioners Amitabh Thakur, an IPS officer from UP and Dr Nutan Thakur, a  social activist, both resident of 5/426, Viram Khand, Gomti Nagar, Lucknow-226010, phone number- 94155-34526 and working in the field of Human Rights as well, humbly pray as follows- .

1.       That this petition is as regards Aarushi murder case registered as crime No 695/08 u/s 302 IPC, ps Sector 20, district Noida whose complainant was Dr Rajesh Talwar  and which was later handed over to the CBI on 31/05/2008.

2.       That the petition is being presented by the two petitioners in their private and individual capacity

3.       That the petitioner No 2, Nutan Thakur had presented a petition through letter No- Aarushi/CBI/01 Dated- 22/10/2012 whereby she had stated the entire sequence of events in this murder case as happened till that date, including fact that the UP Police while investigating the case had arrested the complainant Dr Rajesh Talwar on 23/05/2008, the CBI took Dr Talwar is police custody from 01/06/2008 to 04/06/2008, on 1306/2008, the Nepalese compounder of Dr. Rajesh Talwar,  Sri Krishna Thadarai (alias Kishan) s/o Sri Chitrabahadur arrested by CBI, on 27/06/2008, one Sri Duranis' Nepalese domestic help Sri Rajkumar s/o Sri Shiv Kumar arrested on the suspicion of involvement in the murder, on 11/07/2008 Sri Vijay Mandal (alias Sambhu) arrested by the CBI, in a press conference, Sri Arun Kumar, then Joint Director CBI, stating that the CBI is awaiting DNA matching of washed blood stains on Sri Rajkumar's T-shirts and that the CBI still considered this a blind case and expresses the hope that the case will be solved soon, on 12/07/2008 Dr. Rajesh Talwar  freed on bail, on 09/08/2008, the then CBI director Sri Ashwani Kumar saying the case is still unsolved, as many important corroborative pieces of evidence are yet to be found, on 04/09/2008- Sri Vijay Mandal granted bail, on 12/09/2008 Sri Krishna and Sri Raj Kumar granted bail though CBI counsel Sri Suresh Batra opposed bail, on 29/12/2010 CBI filing closure report, on 09/02/2011 the special CBI court made Dr Rajesh Talwar and Ms Nupur Talwar and on 25/05/2012 both Sri Rajesh Talwar and Ms Nupur Talwar were charged by the Ghaziabad court with murder, destruction of evidence and conspiracy.

4.       That based on above facts, Petitioner No 2 had said two important points-
(A) It is rather strange that the UP Police had arrested the complainant Dr Rajesh Talwar as early as on 23/05/2008 but within days of taking over the investigation, the CBI found him innocent, facilitating his release from prison though coming back to him again- firstly through their closure report dated 29/12/2010 and later when the Hon’ble Supreme Court sought CBI’s opinion on 15/04/2011

(B) More importantly, the CBI seemed to be unusual hurry while arresting Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal whose arrest facilitated the release of Dr Talwar, against whom the same CBI is now furnishing a lot of evidences- witnesses and documents.

5.       That she said that the set of events that took place between CBI took over this investigation on 31/05/2008 to the date Dr Talwar got out of police custody due to non-opposition by CBI are wrapped in mystery and seem to have much more hidden than can be seen as an outsider and that the rapid set of events during these 45 days showed CBI in extreme hurry where on one hand Dr Talwar is exonerated from the crime, only to be haunted much later by the same CBI and the Hon’ble CBI court and more critically and shamefully, CBI arrests three completely innocent, helpless and poor Nepalese people who were working as servants in different households

6.       That she alleged that the way these arrests were made in rapid succession and then after the release of Dr Talwar everything slowed down and no Charge sheet was filed against these three poor people framed in this murder case, made it pretty clear that some of the officers involved in this investigation were working for some particular agenda, unrelated with fact and justice. This gets corroborated by the above-mentioned statement made by Sri Ashwini Kumar, then Director, CBI dated 09/08/2008 and Sri Arun Kumar dated 11/07/2008

7.       That petitioner No 2 quoted from Chapter 12 (Arrests, Custody, Bail and Remand) from Crime Manual 2005 which says- “12.3 However, as arrest takes away liberty of an individual, the power to arrest vested under Section 41 Cr.P.C. must be exercised with due care and caution. The power being discretionary must be used with due care to ensure that the human rights of any individual are not violated under any circumstances. The arrest may be made only when it is reasonably felt that the individual so arrested is involved in the commission of a heinous crime and will be prosecuted in the Court of Law for the offences committed by him and if it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law. Undue publicity for arrests made must be avoided”

8.       That she alleged that none of these guidelines was followed while making arrest of these three servants who were later found innocent while at the same time releasing Dr Talwar from the net though very soon after these arrests the CBI lost interest in these three accused, failed to file Charge sheet within the stipulated time, never really bothered again for them and also exonerated them completely through their closure report dated 29/12/2010

9.       That she concluded that the above set of events make it amply clear that- (a) these three arrests were made without any proper application of mind without due dare and caution and was hurried in nature, these arrests were made even when the CBI was still groping in the dark and was not clear about how these murders took place and to make three important arrests at rapid succession without any sufficient material on record is certainly improper and is also the curtailment of these person’s human rights and human dignity, with the sole purpose of saving Dr Rajesh Talwar and his wife.

10.   That hence petitioner No 2 prayed- “(a) Kindly get the entire set of events enquired regarding why suddenly CBI thought Dr Rajesh Talwar and his wife to be innocent, despite the investigation still being quite premature (b) Kindly get it enquired why the then CBI officials arrested Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal in so rapid succession despite having not come to any definite conclusion, as acknowledged by the Joint Director and the Director during various Press interaction (c) Kindly grant a suitable compensation to Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal for having got them arrested so fast without even having sufficient evidence against them and having later found conclusively that the three could not have been the accused “

11.   That she also sent a petition to Director, CBI where she additionally prayed- “Kindly make a formal apology to these three poor, innocent, foreign nationals who had to undergo a lot of trauma, torture and intense loss of face because of these hurried and improper CBI arrest”

12.   That when nothing happened either at the end of the NHRC or the Director, CBI, the petitioner No 2 filed a Writ Petition No 5927 of 2013 (M/B) before the Hon’ble Allahabad High Court, Lucknow Bench whereby she made the same prayers

13.   That the Hon’ble High Court after hearing the matter, made the following order dated 11/07/2013-“The subject matter of this writ petition relates to Aarushi murder case, at Gaziabad which comes within the territorial jurisdiction of Allahabad Bench where all cases connected therewith are being heard. The writ petition is dismissed with liberty to pursue the matter, if so advised, at Allahabad.”

14.   That the petitioner No 2 has not filed any Writ Petition in the Hon’ble Allahabad Bench or at any other legal forum so far.

15.   That meanwhile yesterday (25/11/2013) the Hon’ble special CBI court, Ghaziabad held the dentist couple Sri Rajesh Talwar and Ms Nupur Talwar guilty in connection with the murder of their daughter Aarushi and domestic help Hemraj at their Noida residence. The Hon’ble court also convicted them on charges of destroying evidence and misleading investigators.

16.   That the Hon’ble Special Judge Sri Shyam Lal pronounced the couple guilty in the Ghaziabad district court. The court held that the prosecution had been able to establish an unbreakable chain of circumstantial evidence pointing to their guilt. The couple was immediately taken into custody and the quantum of their sentence will be pronounced by the Hon’ble court today.

17.   That the convicts say that they shall be challenging this order before the Hon’ble Allahabad High Court, which they have every right to do.

18.   That but the fundamental question that now gets judicially established is that the three Nepalese Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal seem to have been falsely arrested, having nothing to do with this case.

19.   That in Joginder Kumar vs State Of U.P (1994 AIR 1349, 1994 SCC (4) 260), the Hon’ble Supreme Court had said-“8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving petitions about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?”

20.   That it also said- “11. This Court in Nandini Satpathy v. P.L. Dani4 (AIR at p. 1032) quoting Lewis Mayers stated: (SCC p. 433, para 15) "The paradox has been put sharply by Lewis Mayers: 'To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.' "

21.   That the Hon’ble Supreme Court said-“12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.”

22.   That the Hon’ble Supreme Court said-“It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines......"

23.   That it said-“The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a petition and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

24.   That in Smt. Nilabati Behera Aliaslalit vs State Of Orissa And Ors (1993 AIR 1960, 1993 SCR (2) 581), the Hon’ble Supreme Court further said-“In view of the decisions of this Court in Rudul Sah v. State of Bihar and Another, [1983] 3 S.C.R. 508, Sebastian M. Hongray v. Union of India and Others, [1984] 1 S.C.R. 904 and [1984] 3 S.C.R. 544, Bhim Singh v. State of J&K [1984] Supp. S.C.C. 504 and [1985] 4 S.C.C. 677, Saheli, A Women's Resources Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1 S.C.C. 422 and State of Maharashtra and Others v. Ravikant S.Patil, [1991] 2 S.C.C. 373, the liability of the State of Orissa in the present case to pay the compensation cannot be doubted and was rightly not disputed by the learned Additional Solicitor General”

25.   That the Hon’ble Supreme Court said-“In Rudul Sah (supra), it was held that in a petition under Article 32 of the Constitution, this Court can grant compensation for deprivation of a fundamental right” and that-“In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21'which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as shield. If Civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of in- dividuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers” (pp.513-14)

26.   That In Bhim Singh v. State of J &K and Others, [1985] 4 S.C.C. 677, illegal detention in police custody of the petitioner Bhim Singh was held to constitute violation of his rights under Articles 21 and 22(2) and the Hon’ble Supreme Court exercising its power to award compensation under Article 32 directed the State to pay monetary compensation to the petitioner for violation of his constitutional right by way of exemplary costs or otherwise, taking this power to be settled by the decisions in Rudul Sah and Sebastian M. Hongray. In Saheli, [1990] 1 S.C.C. 422, the State was held liable to pay compensation payable to the mother of the deceased who died as a result of beating and assault by the police.

27.   That the Hon’ble Supreme Court said-“It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.”

28.    That the Hon’ble Supreme Court said-“We may also refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as under:- "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

29.   That whatever have been stated by the Hon’ble Supreme Court in the above cases seem to apply completely in the case of the above three helpless, poor and hapless Nepalese domestic servants, who from all the facts coming so far, seem to have been arrested to save the Talwars who could not finally be saved.

30.   That hence it seems imperative that the three Nepalese servants mentioned above being seemingly arrested as artificially and arbitrarily involved in this case shall be directed by this Hon’ble Commission to be adequately compensated by the concerned/appropriate authorities and the two petitioners pray accordingly that adequate and appropriate compensation be granted to them in lieu of the curtailment of their Human Rights and taking away of Human dignity, apparently for improper and insufficient reasons.

31.   That in addition, the petitioner No 2, also seeks action against all the members of CBI who are found guilty of arresting these three Nepalese without substantive and sufficient reasons, because as the chain of events clearly demonstrate, there was not any other reason to arrest these three Nepalese servants than to save the real culprits.

Lt No- Aarushi/CBI/01                                                 (Amitabh Thakur)          (Dr Nutan Thakur)
Dated- 26/11/2013                                                                                       5/426, Viram Khand,
                                                                                                                                Gomti Nagar,
                                                                                                                                Lucknow- 226010                                                                                                                                                                          # 94155-34525